Graveside birthday parties: the legal consequences of forming families posthumously.

• Author: Lewis, Browne C.

INTRODUCTION

As a result of reproductive technology, procreation is no longer left to the living. Assisted reproduction has enabled infertile couples, single people, and same-sex couples to create families with children. (1) Traditionally, a family consisted of a husband, a wife and their adopted or biological children. (2) High divorce rates led to single parent families and blended families consisting of stepchildren. (3) As a result of the sexual revolution, some families were made up of a man, his "old lady," and their non-marital children. (4) More recently, the discovery of effective methods to extract and freeze sperm has also allowed some individuals to engage in posthumous reproduction. (5) Therefore, individuals do not have to let a little thing like death prevent them from conceiving children with the loves of their lives. Posthumous reproduction permits families to create living memorials to their dead love ones. (6)

A dead man's sperm can be used to impregnate a woman years after his death, (7) and a surrogate can use the eggs of a dead woman to conceive a child. (8) These are just a couple of the miracles made possible by advancements in reproductive technology. Physicians and other health care providers hail the beneficial uses of reproductive technology and scientists marvel over the developments that make such uses possible. Lawyers and others in the legal community, however, are forced to deal with the mistakes that inevitably occur. (9) Even when everything goes according to plan, families are sometimes forced to deal with the often unforeseen legal consequences that arise from using reproductive technology.

This Essay highlights some of the legal consequences resulting from the widespread availability and use of reproductive technology. The Essay is divided into three parts. Part I examines the steps that must be taken to identify the legal parents of the posthumously conceived children. Part II discusses the reproductive rights of the deceased gamete providers. Since most posthumous reproduction is done using the sperm of dead men, the discussion centers on male reproductive rights. Finally, Part III focuses on the inheritance rights of posthumously conceived children.

1. IDENTIFYING THE LEGAL PARENTS

   A key consequence of the existence of children conceived posthumously using reproductive technology is the law's need to identify the parents of those children. Establishing the parent-child relationship is crucial because it determines the child's status as legitimate or illegitimate, (10) In an Ohio surrogacy case, for example, because the surrogate was not married to the child's father, the child would have been classified as illegitimate had the court recognized the surrogate as the child's legal mother. (11) Although courts and legislatures have taken steps to remove the stigma of illegitimacy, (12) non-marital children still face cultural, emotional, and legal barriers. (13) For instance, in order for a child to receive financial support, inherit under the intestacy system, or collect Social Security and other government benefits, the child must demonstrate the existence of a legal parent-child relationship. (14)

   Identifying the legal parents of children conceived using reproductive technology is just one of the challenges the legal system faces as use of this technology becomes more common. To illustrate the problems that can arise from situations involving the use or misuse of reproductive technology, I will rely in this Part on three widely publicized cases, building on their actual facts to demonstrate the breadth of legal issues that may emerge.

   1. The Morns

      When a child is conceived as the result of a surrogacy agreement, there are often two women involved. Thus, it is possible that each will vie for the legal title of "mother." (15) There are two common types of surrogacy arrangements--traditional and gestational. In a traditional surrogacy arrangement, the surrogate supplies the ova to conceive the child and carries the child in her uterus. Because the traditional surrogate has supplied the genetic material used to create the child, she is the child's biological mother. (16) Genetics alone, however, may not be enough to establish the surrogate as the child's legal mother. (17) In contrast, in a gestational surrogacy arrangement, the surrogate carries a child using the genetic material of another woman. The gestational surrogate is thus not biologically linked to the child to whom she gives birth. (18) Nevertheless, the lack of a biological connection does not prevent the surrogate from being recognized as the child's legal mother. (19)

      Recently, the news headlines were awash with stories about Carolyn Salvage, the Ohio woman who, while attempting to undergo in vitro fertilization, was implanted with the wrong embryo. (20) Although Ms. Salvage graciously agreed to serve as a surrogate for the woman who supplied the genetic material that was accidentally into her uterus, (21) the story could easily have ended with implanted a contentious battle for custody of the child.

      The issue of the maternity of a child born using a surrogate has not been completely resolved. (22) Legislatures have provided little guidance, leaving courts to deal with the issue on a case-by-case basis. The end result is a common-law system that is confusing and unhelpful. (23)

      For example, a surrogate who gives birth to a child in New Jersey has the opportunity to be designated as the child's legal mother even if she has no biological connection to the child. In A.H.W. v. G.H.B. (24) a New Jersey court referred to the woman as a gestational mother instead of a gestational surrogate, (25) reasoning that a woman who gestates and gives birth to a child should not be treated as though she is merely an incubator. (26) According to the court, the fact that the child stays inside the surrogate for nine months creates a bond between the woman and child that the law should not disregard. (27)

      In California, on the other hand, even a surrogate who is the child's biological mother may not be classified as the child's legal mother if evidence indicates that the parties intended a different outcome. In Johnson v. Calvert, (28) the California Supreme Court held that the appropriate test for determining the identity of the legal mother of the child was the "intent" test. (29) Specifically, the court stated, "she who intended to procreate the child--that is, she who intended to bring about the birth of a child that she intended to raise as her own--is the natural mother under California law." (30)

      Other courts have advocated a variety of different tests to adjudicate the legal mother of a child conceived as the consequence of a surrogacy arrangement. For instance, in Belsito v. Clark, an Ohio court held that genetics or blood, not intent, is the determining factor. (31) After reviewing the limited case law from other jurisdictions, the court concluded that in order for a person to be deemed a natural parent, the person had to be genetically connected to the child, as established by a DNA blood test. (32) In contrast, the dissenting justice in Johnson argued that the "best interests of the child" test was the appropriate standard to apply to determine maternity. (33) Thus, according to Justice Kennard, when adjudicating maternity, the court should strive to protect the welfare of the child rather than merely promote the intentions of the adults. (34) Finally, the Supreme Court of Tennessee recently concluded that the proper standard for adjudicating maternity is a multi-factor test that focuses on all of the circumstances surrounding the particular case. (35) The test is flexible and varies depending on the facts of the case before the court. (36)

      Historically, it was easy to identify the legal mother of a child. The woman who gave birth to the child was usually the one who supplied the genetic material that was used to create the child. (37) One of the consequences of assigning those roles to two different women is the increase in litigation. When a surrogate arrangement goes according to plan, it is a beautiful thing. Nonetheless, if the surrogate decides that she cannot bear to part with the child, the court is forced to step in and assume the role of Solomon--perhaps without the appropriate amount of wisdom.

      Uncertainty regarding the parental rights of surrogates seriously complicates the already complex issues associated with posthumous reproduction. If a man hired a surrogate to carry a child created using his dead wife's genetic material, he probably would not want the gestational surrogate to be identified as the child's legal mother. However, the courts may be reluctant to designate the child as legally motherless. (38) Since the woman who supplied the genetic material used to conceive the child would be dead, she could not be named as the child's legal mother. Thus, the man may be forced to have some type of relationship with a woman who is virtually a stranger to him.

      Some jurisdictions provide a procedure for having gestational surrogacy agreement preapproved. (39) As a part of the process, the gestational surrogate must agree to surrender the child to the intended parent or parents. (40) This is only a partial solution to the problem. First, only a few states have statutes setting out a prior approval process for gestational surrogacy agreements. Hence, very few potential intended parents are protected by such statutory mandates. Second, at least one court has held that the gestational surrogate could not lawfully surrender the child until at least seventy-two hours after the birth, removing even the possibility of preapproval in that jurisdiction. (41) Third, the language and legislative histories of the existing preapproval statutes indicate that they were meant to apply to situations where all of the parties were alive. The possibility of posthumous reproduction is not discussed. Finally, in most...